Enter the kingdom but watch who you bring home… Is Victoria’s border closure lawful?

Without straying too much into the Swamp of Sadness that is social media’s discussion of emergency powers, it is worth discussing whether or not States within our federal structure should have the ability to close their borders.  The question emerges as the Victorian Government ‘closed its border’ to NSW, effectively preventing Victorians who were in NSW from being able to return home.

Twice in 2020, the Victorian Government was criticised for its decision-making in emergency situations.  The Hotel Inquiry Report found that decision-making processes were manifestly inadequate and inappropriate; the Ombudsman found that the decision to send police into public housing towers was based both on incorrect information and with unnecessary haste.  We should turn our minds to whether or not closing the border will be three for three on poorly made decisions from the Victorian Government.

It is important to remember that the Constitution is not a suicide pact.  If a tough decision simply must be made, the Constitution is not going to be an impediment.  We can imagine some science fiction scenario where New Zealand hits Canberra with a nuke, wiping out most of our political and military leadership, to begin an invasion of the mainland.  It would be absurd if, say, the NSW Government began establishing an impromptu military force to resist the invasion and somebody felt that s 114, the prohibition on the States to raise armed forces, should be an obstacle.

But, equally, we can imagine the current scenario: there’s a minor outbreak in Sydney, NSW.  The area of NSW is 800,000km2, of which 12,000km2 is the Greater Sydney area.  In fact, there are some areas of NSW that are closer to Melbourne than they are to Sydney: Broken Hill, for example, is about 700 kms from Melbourne, but about 900 kms from Sydney.  So let’s imagine that there’s an outbreak in Sydney but nothing in Broken Hill — not even suspicion that there’s undetected spread there.  And we imagine that somebody from Victoria has family there, and they’ve gone for a holiday there to be disconnected from social media, the news, &c., &c., &c. (which is not so absurd; in the final weeks before my thesis was due, I flew to the UK so that I could hijack a friend’s desk and disconnect from work, social media, and other forms of contact to focus on writing about s 61 of the Constitution).  This person read the warning to stay away from Greater Sydney, and they’ve reasonably concluded that going to a location closer to Melbourne than to Sydney is not unreasonable.

Alas!  They emerge from their self-imposed information exile to discover that the Victorian Government won’t let them back across the border.  Do they have any plausible legal arguments that the border isn’t closed to them?

The answer is that it seems very likely that they do under both Constitutional law and under Victorian legislation.

Remember, the Victorian Government’s powers with regard to the emergency flow from Division 3 of the Public Health and Wellbeing Act 2008 (PHWA).  It is not–despite what some people have claimed–a blank cheque to the Government to do whatever it wants as a precaution.  The Chief Health Officer may only exercise powers if they believe that it is reasonably necessary to eliminate or reduce a serious risk to public health (s 199).

This part really throws off a lot of people, especially those with STEM backgrounds.  The ABC’s chief pandemic commentator, Norman Swan, for example, claimed that a ‘proportional response is the maximal one‘.  This is not a legally accurate claim.

At this point, we are curious.  Is it reasonably necessary to prevent a person who was more than 900kms away from an outbreak to return to their home?  What is the evidence for the use of the emergency power?  It’s not obvious that the threshold was met.

But why does this emerge as a problem at all?  Section 200 of the PHWA allows the Chief Health Officer (when reasonably necessary) to ‘restrict the movement of any person or group of persons within the emergency area’.  The ’emergency area’ here is the entire State of Victoria, as declared under s 198(7)(c) of the PHWA.  Effectively, the border is closed because emergency area is consequentially defined in terms of the border.

Under a federal system, is this permitted?  There is an infamous section of the Constitution, s 92, that has hot wild jurisprudence.  It reads:

On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

There’s a bit over 100 words there and, due to the temporal nature of a lot of that text, only 20 remain relevant today:

Trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

But what does ‘absolutely free’ mean?  Isaac Isaacs hated this clause because it seemed ‘dangerously wide’: he felt that what was meant here was a prohibition on States imposing their own inter-state duties, which was already covered by other provisions of the Constitution.  One of the drafters believed that the provision would be unworkable, but it’s mere existence would prevent the States from trying anything shady.

Robert Garran and John Quick wrote that ‘absolute freedom of trade, commerce, and intercourse may be defined as the right to introduce goods, wares, and merchandise from one State into another, the right to sell the same, and the right to travel unburdened by State restrictions, regulations, or obstructions.’  The point of a federal system is that, within lawful reason, Australians can go wherever they like within Australia, instead of being limited only to the historical quirk of the colonies.

The relevance of s 92 was recently considered in Gerner v VictoriaJulian Gerner runs a restaurant in Melbourne and claimed that the recent lockdown, which affected his business, was unlawful because an ‘implied freedom of movement’ was:

  1. implied from the text and structure of the Constitution and is logically and practically necessary for the preservation of the constitutional structure;
  2. alternatively, to be implied from the system of representative and responsible government enshrined in the Constitution and as part of the implied freedom of political communication;
  3. alternatively, implied as an aspect of s 92 of the Constitution.

Mr Gerner lost the case for reasons mostly unrelated to our hypothetical problem, but the judgement provides material to help us think through the problem in greater depth.

First, it is not merely enough that we have a federal system that we should also have freedom of movement throughout the Commonwealth.  We don’t answer our question by asking ‘what is required by federation?’ but, instead, by asking ‘what do the terms and structure of the Constitution prohibit, authorise or require?’  We cannot reverse-engineer restrictions on the Commonwealth and States based on how we think federalism should (or should not) work; it has to flow from the terms and structure of the Constitution (‘Structure’ here is a bit of a cheat because Chapter III jurisprudence relies almost entirely on the belief that there is deep, dark magic in the headings used throughout the Constitution).

Second, the High Court noted the judgement in a 1998 Federal Court case, Higgins v the Commonwealth, that it is ‘inconceivable’:

that the Constitution implicitly puts at risk (subject to considerations of proportionality, etc) a significant range of routine Commonwealth and State laws merely because in particular ways, they limit either freedom of movement or else the making of choices within that freedom. I instance criminal laws authorising or requiring incarceration, curfew provisions, some forms of town planning and road traffic legislation, and statutes which exclude or regulate entry on real property, public transport etc. [Emphasis mine]

The High Court said that ‘laws providing for quarantine as a routine response to outbreaks of contagious or infectious diseases’ could also have been included on this list.

Mr Gerner lost his s 92 argument because there was no inter-state commerce being regulated.  Mr Gerner was opposed to restrictions that allowed customers to move intra-state.

But our hypothetical problem gives something different: here is an effective border closure that seems to place a burden on intercourse between the States and, importantly, this burden does not seem to be proportionate to the policy problem.  Succinctly, Mr Gerner lost on this ground because the restriction was not focused upon inter-state intercourse; our problem envisages a restriction that is only placed upon inter-state intercourse.

In November 2020, the High Court handed down orders in the case of Palmer v Western Australia, but did not give its reasons for the decision (which will come at a later date).  Clive Palmer (a former parliamentarian and current mining company director) argued that Western Australia’s direction that prohibited the movement of people into Western Australia was a violation of s 92.  The High Court, ‘by at least a majority’, ordered that the Emergency Management Act 2005 complied with s 92, and the directions made under that Act did not raise a constitutional question.  But we are not clear on why or what relevance it might have to the hypothetical scenario.  Western Australia did not outright forbid the return of Western Australian residents, but required them to undergo supervised quarantine first, in a context where most States or Territories were recording outbreaks.  Victoria, on the other hand, won’t let anybody in.  What we do know is that the court turns its mind to the practical operation of the law (AMS v AIF [1999]) and that infringement of the freedom involves the court turning its mind to considerations of proportionality (Higgins).  As the practical operation of the law is that Victorians in NSW have no lawful pathway home, and the severity of this outbreak is far less than that being managed by Western Australia, it is likely that there are still grounds for s 92 challenge.

So, by this stage, it looks like there is an argument that the exercise of power might be beyond what is given by PWHA, and (pending the reasons for the decision in Palmer) that it possible that it would not survive a s 92 challenge.  Is there anything else?

Yes, there is a further constraint upon the Executive’s emergency powers through the Victorian Charter of Human Rights.  Section 12 includes a freedom of movement:

Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Section 38 of the Charter makes it ‘unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.’  And so the question is whether or not the Chief Health Officer acted unlawfully by not giving proper consideration to the right expressed in section 12.

This was related to the problem identified by the Ombudsman with regard to the police enforcing a lockdown of the public housing tenants.  The relevant official simply did not give proper consideration to the rights expressed in the Charter.

Of course, the rights listed in the Charter are not absolute.  A right under the Charter may be subject under law only to such reasonable limits as can be  demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors.  And so we’re back to a factual question: is preventing our person from returning from a place more than 900kms away from the nearest outbreak a proportionate limitation upon their right to leave and enter Victoria?  Unless there is an amazing evidence base being kept secret, the answer appears to be not.

The important point here is that there’s no ‘Let It Rip’ doctrine in Australian emergency law.  Always, the power of the Executive is constrained, usually by reference to proportionality.  This is good.  We want to live in a republic of reason in which Executive power is limited to what is necessary, rather than to what is precautionary.  We need our political media to engage more in this sort of discussion so that the wider public can engage in the real discussion about how to handle emergencies in a liberal democracy.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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